Bel-Gttiba v Commissioner of Police [2021] QDC 155

DISTRICT COURT OF QUEENSLAND CITATION: Bel-Gttiba v Commissioner of Police [2021] QDC 155 PARTIES: EVA BEL-GTTIBA (appellant) v COMMISSIONER OF POLICE (respondent) FILE NO/S: D182/20 DIVISION: Appellate PROCEEDING: Appeal against conviction ORIGINATING COURT: Magistrates Court Noosa DELIVERED EX TEMPORE ON: 16 July 2021 DELIVERED AT: Maroochydore JUDGE: Cash QC DCJ ORDERS: The appeal is dismissed. LEGISLATION: Criminal Code Act 1899 (Qld), s 24, s 25 Transport Operation (Road Use Management) Act 1995 (Qld), s 123C, s 124 Transport Planning and Coordination Act 1994 (Qld), s 27 State Penalties Enforcement Act 1999 (Qld), s 105 APPEARANCES: Appellant in person S Drinovac for the respondent instructed by the Office of the Director of Public Prosecutions Introduction [1] On 25 September 2020 the appellant, Eva Bel-Gtibba, appeared before a Magistrate at Noosa. She faced a charge of driving while unlicensed, her licence being suspended through the State Penalties Enforcement Act 1999 (Qld) (‘SPE Act’). The appellant said she was not guilty. After a trial in which a police officer and the appellant testified, the Magistrate convicted her. The penalty imposed was fine of $300 and the minimum period of disqualification, which was one month. The appellant now seeks to appeal her conviction. The notice of her intention to appeal was filed a day late. Given this very short delay it is appropriate to consider the merits of her appeal. If there is merit to the appeal the delay should not prevent the appellant from succeeding. [2] The appellant represents herself, as she did before the Magistrate. She has filed a significant quantity of material. It is apparent from that material that the appellant has in her life faced a range of difficult circumstances. Some of her complaints are directed toward what the appellant calls enforced disappearance and torture by agents -- 1 of 4 -- 2 of a government. I do not intend to be discourteous to the appellant, but it is necessary to note that almost all of what she has filed is irrelevant to the present proceedings. As best as I can understand the material, there are two complaints relating to the appeal against conviction. The first may be described as a complaint that the evidence was insufficient to establish her guilt. The second is a complaint about a lack of procedural fairness, in particular claims that the Magistrate did not permit the appellant to speak and told her to shut up during the hearing. [3] In these circumstances the appropriate way to deal with the appeal, which is by way of re-hearing, is to examine the record of the proceedings to decide if the evidence established the guilt of the appellant or if the decision was otherwise affected by error. The Evidence [4] The relevant evidence may be briefly summarised. Senior Constable Jacqueline Rogers was the only witness to testify for the prosecution. She said that at about 1.00am on 17 March 2020 she was patrolling in the Noosaville area. She saw a yellow Toyota in Goodchap Street. Having pulled over the car, Senior Constable Rogers saw it was being driven by the appellant.1 Senior Constable Rogers made computer checks and formed the view that the appellant was unlicensed as her licence had been suspended by the State Penalties Enforcement Registry (‘SPER’). She issued the appellant a notice to appear. [5] Later Senior Constable Rogers obtained a certificate from a person described as a ‘Delegate of the Chief Executive of the Department of Transport and Main Roads’. The certificate purported to certify two things. First, that at 0054 hours on 17 March 2020 there ‘was not in force a driver licence issued … to Eva Bel-Gtibba’. Secondly, that the appellant’s licence ‘was suspended under the SPE Act … effective on and from 1 March 2020 and … removed on 17 March 2020, 1403 hours’.2 Much of the rest of Senior Constable Roger’s evidence-in-chief was taken up by discussion between the prosecutor and the Magistrate as to the admissibility and force of the certificate. It was tendered and became exhibit 1. I will return to this topic shortly. Senior Constable Rogers was permitted to testify that a notice of suspension was sent to the appellant’s address on 17 February 2020.3 In cross-examination the appellant established that the police officer recognised her as the driver as soon as she walked into court.4 [6] The appellant gave evidence. She said she did not receive the notice of suspension from SPER,5 and that ‘my licence may not have been suspended’.6 She admitted that she did drive the car as observed by the police officer,7 but that she was driving somewhere to sleep as she was homeless.8 In cross-examination, the appellant 1 T.1-6.40-T.1-7.1. 2 There was no evidence as to how or why the suspension was lifted at 2.03pm on 17 March 2020, which was about 12 hours after the offence. I infer it was the result of some action taken by or on behalf of the appellant to settle matters with SPER – see section 105 SPE Act. 3 T.1-21.20. 4 T.1-24.10.15. 5 T.1-30.37. 6 T.1-31.25. 7 T.1-34.37. 8 T.1-35.13. -- 2 of 4 -- 3 accepted that the address on her licence was the same address to which the notice of suspension was sent.9 The Magistrate’s decision [7] The Magistrate identified the three elements to be proved by the prosecution. First, that the appellant was driving at the relevant time and place; secondly, that she was not the holder of a licence; and thirdly that her licence had been suspended by SPER. The Magistrate had no doubt the appellant was driving. The Magistrate considered that second and third elements were established by the certificate. [8] The Magistrate considered section 25 of the Criminal Code Act 1899 (Qld) (‘Criminal Code’), ‘emergency’, and section 24, ‘mistake of fact’. As to the former the Magistrate was satisfied the evidence raised no question of a sudden or extraordinary emergency that might relieve the appellant of criminal responsibility. In relation to section 24 the Magistrate considered any belief held by the appellant that she was the holder of a licence was a mistake of law, and not of fact. For these reasons he convicted the appellant. Consideration [9] It is convenient to deal first with the appellant’s complaint that she was not permitted to question or present her case before the Magistrate. A perusal of the transcript demonstrates that the Magistrate was measured and courteous. He explained the procedures to the appellant and did his best to focus her attention on the real issues in the trial. To any extent, the Magistrate did not wish to hear from the appellant in relation to the admissibility of the certificate that became exhibit 1. That was understandable where the appellant had demonstrated she would be unable to usefully contribute to the discussion, which turned upon matters of statutory construction. [10] As to the sufficiency of the evidence, the appellant admitted to driving. The only remaining issues were whether she was not the holder of a licence and whether that was because it was suspended by SPER. If the certificate in exhibit 1 was admissible, in the absence of evidence in rebuttal it was conclusive evidence of the matters stated in the certificate.10 Section 123 Transport Operation (Road Use Management) Act 1995 (Qld) (‘TORUM’) deems as evidence a certificate if it states a matter in Schedule 1, Column 1 of the Act and is signed by a person mentioned in Column 2. The matters stated in the certificate are matters mentioned in Column 1. The Chief Executive of the Department of Main Road is a person mentioned in Column 2. The person who signed exhibit 1 is not a person directly mentioned in Column 2. But s 37 of the Transport Planning and Coordination Act 1994 (Qld) permits the Chief Executive to delegate their authority in such a case. It is unnecessary to prove the delegation unless the defendant in a matter give notices in a required way. That did not occur in this case and the description of the signer of the certificate as the delegate of the Chief Executive was sufficient. The certificate was to be taken as having been signed by the Chief Executive. It was thereby admissible and proof of the matter stated in the certificate. Because there was no evidence contradicting the matters certified, this was sufficient to establish the remaining two elements. [11] The Magistrate was correct in his consideration of section 25 and section 24 of the Criminal Code. The suspension of the appellant’s licence by SPER did not depend 9 T.1-36.37-40. 10 TORUM, section 123C(1), section 124. -- 3 of 4 -- 4 upon proof she had been notified of the decision. Once a decision had been taken to issue a notice, suspension followed as a matter of the operation of the statute. A belief by the appellant that her licence was not suspended was, at best, a mistake of law. It follows that the appeal against conviction must be dismissed. [12] There may be an appeal against sentence. If there is, it must also be dismissed. The penalties imposed were as modest as they could be in the circumstances. This no doubt reflected the reality that provisions for licence disqualification can operate in an unduly harsh manner upon indigent persons, especially those outside of major city centres. [13] As the prosecution do not ask for costs, there will be no order as to the costs of the appeal -- 4 of 4 --